RULING ON SECTION 11(B) APPLICATION

Court File and Parties

COURT FILE NO.: 22-A8690 DATE: 20241114 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING, Respondent – and – RANDALL HILLIER, Defendant/Applicant

Counsel: Emma Loignon-Giroux, for the Crown Mark Ertel, for the Defendant/Applicant

HEARD: October 3, 2024

MCVEY J.

[1] Randall Hillier stands charged with two counts of mischief, three counts of counselling to commit an indictable offence, three counts of obstructing a peace officer, and one count of assaulting a peace officer. Police swore the Information on March 28, 2022. The charges emanate from Mr. Hillier’s alleged participation in the “Freedom Convoy” that took place in Ottawa’s downtown core during January and February of 2022. A four-week judge and jury trial is scheduled to commence on January 27, 2025. The total delay is just shy of thirty-five months.

[2] Mr. Hillier seeks a stay of proceedings on the basis that his right to be tried within a reasonable time has been violated, contrary to section 11(b) of the Charter.

[3] For reasons given below, the application is granted.

Brief Procedural History

[4] Mr. Hillier was charged on March 28, 2022. His matter remained in the Ontario Court of Justice until December 2, 2022, at which time Mr. Hillier elected to stand trial before a judge and jury in the Superior Court of Justice. The applicable provisions of the Criminal Code did not entitle Mr. Hillier to a preliminary inquiry. Between March 28, 2022, and late October 2022, Mr. Hillier did not move his matter forward because he was waiting on video disclosure that he argues was crucial to his election.

[5] After Mr. Hillier’s election in early December 2022, on January 19, 2023, the parties appeared for their first pretrial conference in the Superior Court. The Crown filed its pretrial conference report the day before the pretrial conference. Counsel for Mr. Hillier did not file a responding report at that time. Counsel for Mr. Hillier advised the pretrial judge that he had not completed a pretrial conference report because he had only received the Crown report the day before, and he had not yet had a chance to review it. Mr. Hillier did advise the Court, however, that he wished to be tried in a different jurisdiction in the East Region. Mr. Hillier’s change of venue motion was scheduled for April 27-28, 2023.

[6] On April 26, 2023, the first motion judge summarily dismissed Mr. Hiller’s motion. Two days later, the Supreme Court of Canada released its decision in R v Haevischer, 2023 SCC 11, where the Court addressed the applicable test for summary dismissal. On June 7, 2023, the motion judge set aside his original ruling and ordered that the change of venue motion be re-heard before a new justice. The parties secured September 18, 2023, as a date for the hearing.

[7] While the change of venue motion remained outstanding in the spring, summer, and early fall of 2023, the Crown repeatedly asked counsel for Mr. Hillier to 1) schedule a second pretrial conference to discuss a trial estimate; and 2) set provisional trial dates in Ottawa. Counsel for Mr. Hillier declined to do either.

[8] On September 25, 2023, after a full hearing, the second motion judge dismissed Mr. Hillier’s motion. After receiving the decision, the parties scheduled a second pretrial conference on November 30, 2023. In the interim, on November 17, 2023, Mr. Hillier discharged his counsel. Mr. Hillier represented himself at the pretrial conference on November 30.

[9] Shortly after the November 30 pretrial conference, the parties secured a four-week judge and jury trial commencing January 27, 2025. Crown pretrial motions were scheduled for September 3-6, 2024. A follow-up pretrial was scheduled for February 12, 2024, to discuss whether Mr. Hillier wished to bring any pretrial motions.

[10] Mr. Hillier remains self-represented for trial though he retained counsel to argue his s. 11(b) application. On July 24, 2024, counsel for Mr. Hillier advised the Crown that Mr. Hillier intended to seek a stay of proceedings. The application proceeded before me on October 3, 2024.

Issues

[11] Mr. Hillier argues that he neither waived nor caused any delay in his matter, and no exceptional circumstances arose that justify his trial being heard outside the presumptive Jordan ceiling.

[12] The Crown contends that the defence caused significant delay, and that the net delay is well below the presumptive ceiling. In the alternative, the Crown argues that exceptional circumstances arose with respect to Mr. Hillier’s change of venue motion that justify any delay exceeding the 30-month presumptive ceiling.

[13] The issues I must decide in this application are:

1. Was video footage of the alleged offence taken at Parliament Hill material disclosure to Mr. Hillier’s election?
2. Whether defence-caused delay arose when Mr. Hillier declined the first available dates offered in the Superior Court for his change of venue motion?
3. Did counsel’s refusal to both attend a second pretrial conference in the Superior Court and set provisional trial dates pending the outcome of Mr. Hillier’s change of venue motion amount to illegitimate defence conduct?
4. Was the release of the Supreme Court’s decision in Haevischer an exceptional circumstance?
5. Did Mr. Hillier raise his section 11(b) application in a timely manner? If not, did his failure to do so contribute to his trial not being scheduled within the Jordan presumptive ceiling?

Applicable Framework

[14] The first step of the Jordan analysis requires me to ascertain the total delay. The total delay is the period between the swearing of the Information and the anticipated end of trial. Mr. Hillier was charged on March 28, 2022, and the anticipated end of trial is February 25, 2025. The total delay is therefore 1061 days or approximately thirty-four months and twenty-eight days: see R v Shaikh, 2019 ONCA 895.

[15] The second step of the analysis is determining what delay, if any, is deductible from the total as defence-caused delay. Net delay exceeding the Jordan ceiling of 30 months is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, a stay of proceedings must follow.

Defence Delay

[16] Defence delay can arise in two circumstances: 1) where the defence implicitly or explicitly waives a period of delay; or 2) where the conduct of the defence is the sole cause of the delay: R v Jordan, 2016 SCC 27, at paras. 61, 63-64; R v Cody, 2017 SCC 31, at para. 26. The Crown concedes that Mr. Hillier did not explicitly waive any period of delay.

[17] However, not all delay solely caused by the defence should be deducted from the total delay in the Jordan analysis because the presumptive ceilings contemplate the time required for the defence to properly prepare and present its case. Therefore, delay associated with legitimate defence actions, such as pretrial motions with arguable merit, is generally included in the 30-month ceiling and not deducted as defence delay. Defence actions “legitimately taken to respond to the charges fall outside the ambit of defence delay”: Cody, at para. 29. In summary, to be deducted as defence-caused delay, the delay must be 1) solely or directly caused by the defence; and 2) flow from illegitimate defence action: Cody, at para. 30.

[18] In its written and oral submissions, the Crown focuses on five distinct areas where it says Mr. Hillier unilaterally and illegitimately caused delay. First, the Crown argues that counsel for Mr. Hillier unreasonably refused to schedule a judicial pretrial in the Ontario Court of Justice until certain video footage was disclosed. Second, once the matter was before the Superior Court, the Crown maintains that Mr. Hillier should have accepted the first date offered for his change of venue motion. Third, the Crown contends that Mr. Hillier should have agreed to schedule provisional trial dates pending the outcome of his change of venue motion. Fourth, the Crown similarly argues that counsel for Mr. Hillier should have attended a second judicial pretrial conference pending the outcome of his change of venue motion so that the parties could immediately set trial dates once in receipt of the Court’s ruling. Finally, the Crown argues that because Mr. Hillier did not provide timely notice of his s. 11(b) application, some portion of the delay between the set date appearance and the trial date should be characterized as defence delay. I address each argument below.

i) Delay in the Ontario Court of Justice – waiting for disclosure

[19] Among other things, Mr. Hillier is charged with assaulting a peace officer and counselling others to commit the indictable offence of mischief. Counsel for Mr. Hillier refused to schedule a judicial pretrial conference in the Ontario Court of Justice until he received video footage of the alleged assault taken by video cameras installed at Parliament Hill. Though other disclosure in Mr. Hillier’s case also remained outstanding, counsel advised the Crown that he was prepared to conduct a pretrial conference and make an election before receiving the other material. The Crown disclosed the video footage on October 26, 2022, and Mr. Hillier elected to be tried in the Superior Court approximately five weeks later.

[20] The Crown argues that Mr. Hillier acted unreasonably when refusing to attend a judicial pretrial or make his election without first obtaining the video footage because the Crown had already provided video disclosure of the alleged assault from other sources. In those circumstances, the Crown maintains that the Parliament Hill video was not fundamental to Mr. Hillier’s decision-making. In addition, the Crown contends that the video footage from Parliament Hill was ultimately of poor quality; therefore, the footage had little, if any, legitimate impact on Mr. Hillier’s election.

[21] In my view, the real issue on this point is not whether counsel for Mr. Hillier should have agreed to schedule a judicial pretrial pending disclosure of the Parliament Hill video, but whether it was reasonable for Mr. Hillier to wait for the video before making his election. I say this because Mr. Hillier ultimately elected to be tried in the Superior Court. If Mr. Hillier was entitled to wait for the video disclosure before making his election, then whether a judicial pretrial in the Ontario Court of Justice took place in the interim becomes neither here nor there in terms of delay. In other words, Mr. Hillier’s matter would have remained in the Ontario Court of Justice for the same duration regardless of whether his counsel attended for a judicial pretrial. The delay would be the same either way.

[22] When determining whether waiting for the video was a legitimate response to the charges, I may consider all the surrounding circumstances, including Mr. Hillier’s overall conduct, and how long his matter had been in the system at the time: Cody, at para. 32. Even defence action or inaction that has merit can still be deemed illegitimate for s. 11(b) purposes if 1) it was designed to delay the proceedings; or 2) defence exhibited a “marked inefficiency” or “marked indifference” towards delay: Cody, at para. 32. To characterize certain defence steps in the proceeding as illegitimate, I need not find that counsel engaged in professional misconduct: Cody, at para 35. In the end, determining whether defence conduct was illegitimate is not an “exact science” and is assessed on a case-by-case basis: Cody, at para. 31.

[23] I appreciate that an accused person must move their matter along before receiving “every piece of evidence”: R v Hanan, 2022 ONCA 229, at para. 44, rev’d on other grounds 2023 SCC 12; R v Allison, 2022 ONCA 329, at para. 46; R. v. N.N.M. (2006), 209 C.C.C. (3d) 436 (Ont. C.A.), at para. 37; R. v. Kovacs-Tatar (2004), 73 O.R. (3d) 161 (C.A.), at para. 47; and R. v. Carbone, 2020 ONCA 394, at paras. 51-53.

[24] Nonetheless, for the following five reasons, I find that Mr. Hillier’s decision to wait for the Parliament Hill video before making his election was a legitimate response to the charges. As a result, I decline to apportion any of the associated delay to defence.

[25] First, while in the Ontario Court of Justice, I find that Mr. Hillier’s approach to disclosure was responsive and reasonable. On June 8, 2022, after counsel followed up with the Crown about a lengthy disclosure request made on March 30, 2022, and again on May 4, 2022, the Crown asked Mr. Hillier to schedule a counsel pretrial and a judicial pretrial. Counsel responded immediately and advised the Crown that he first wished to receive a written response from the Crown on his disclosure request so that their CPT could proceed in a focused fashion. Counsel wrote, “…once I have that response we can book some time to drill down on any issues which require a more in depth discussion”. I see nothing wrong with this approach.

[26] Counsel did not receive a written response from the Crown until two and a half months later, on August 23, 2022, a day before the matter next appeared in remand court. As requested, the Crown set out its position on each piece of disclosure sought by counsel. The Crown again asked counsel to schedule a counsel pretrial and judicial pretrial.

[27] Counsel responded on August 28, 2022, and advised the Crown that the Parliament Hill video was “crucial” disclosure to Mr. Hillier’s election and needed to be received before next steps were taken. With respect to the other items of outstanding disclosure, counsel fairly conceded that they were not critical, and that the matter could proceed without them. Counsel consistently maintained his position that Mr. Hillier could not make an election without viewing the Parliament Hill video.

[28] Counsel received disclosure of the video on October 26, 2022. At that time, despite other disclosure remaining outstanding, counsel obtained instructions and Mr. Hillier formally made his election on December 2, 2022. Given that counsel had many months to discuss the state of the case with Mr. Hillier before receiving the video, in my view, Mr. Hillier’s election could have been made even earlier. However, I am not prepared to find that five weeks in the circumstances was necessarily unreasonable.

[29] Second, when I consider the surrounding circumstances, counsel’s decision to wait for this specific video was justified. The Crown argues that other videos of the alleged offence had already been disclosed therefore it was unnecessary for Mr. Hillier to wait for the Parliament Hill video before making his election. The Crown’s position has much merit and would likely prevail in many other contexts. However, the videos already disclosed to Mr. Hillier in the summer and fall of 2023 all emanated from open-source searches. In other words, the makers of the videos were unknown. Unlike those videos, the video footage from Parliament Hill could easily be authenticated by the Crown and would arguably constitute the most reliable form of video evidence at trial.

[30] Third, I am not satisfied that the poor quality of the video undermines my findings on this issue. On August 23, 2022, the Crown advised counsel that he “[understood] this video to be taken from a significant distance and to be of poor quality.” However, there is no evidence before me that the Crown disclosed the source of his belief or whether that source had viewed the video footage or simply drew an inference of poor quality based on the location of the video cameras. There was little information given to counsel upon which he could have satisfied himself that the video was unlikely to impact Mr. Hillier’s election.

[31] Fourth, I am also permitted to consider the overall conduct of the defence when considering the legitimacy of a particular action: Cody, at para. 32. Counsel took the position that he could not properly advise his client without first seeing the video. Given that he was prepared to move the matter along – and ultimately did move the matter along – without other pieces of outstanding disclosure, including audio recordings of the nefarious 911 calls purportedly placed at Mr. Hillier’s behest, I am satisfied that counsel was not intentionally delaying the proceedings and that his conduct did not reflect a “marked indifference” towards delay.

[32] Finally, the analysis of defence conduct surrounding the setting of judicial pretrials and trial dates may be different where the Crown has elected by summary conviction rendering election as to mode of trial irrelevant. In those circumstances, many appellate cases have held that the defence must proceed to a judicial pretrial and set trial dates without full disclosure. But, in my view, more caution is required when reviewing the legitimacy of decision-making surrounding an accused’s election. This distinction is acknowledged in Kovacs-Tatar:

Something should be said about counsel's refusal to set a date because the expert report was not available. The Crown is obliged to make initial disclosure before the accused is called upon to plead or to elect the mode of his trial. See the comments of Sopinka J. in R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.) at pp. 13-14. In this case, since the Crown had elected to proceed summarily, election of the mode of trial was not an issue. Having regard to the length of time before trial, the appellant's counsel knew the expert's report would be completed many months before the appellant had to plead and the appellant would have had ample time to obtain his own expert's report had he wished to do so.

[33] Similarly, in R v Lahiry (2011), 2011 ONSC 6780, 283 C.C.C. (3d) 525, at para. 114, the Court distinguished between defence refusing to attend a pretrial or set a trial date without full disclosure, and waiting for “material” disclosure before electing mode of trial:

In any event, as I read the above line of binding authority, outstanding disclosure can often be significant and it still cannot be used to hold up the setting of dates for trial or preliminary inquiry. Sophisticated forensic testing and ongoing investigative steps often take time and they cannot be allowed to hold the process hostage by preventing the setting of timely trial dates. It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages.

[34] For the reasons set out above, I am satisfied that the Parliament Hill video was “truly material” to Mr. Hillier’s election and, therefore, waiting for it was legitimate defence conduct. In my view, in these specific circumstances, to find otherwise would constitute an unwarranted “second guessing” of how counsel conducted Mr. Hillier’s defence: see Cody, at para. 31.

[35] I make one final comment on this issue. In oral submissions, the Crown stressed that the Parliament Hill video took time to obtain because of various Parliamentary rules. It may be in some cases that delay in disclosure could constitute an exceptional circumstance if the circumstances are truly outside the control of the Crown and the Crown has taken reasonable steps to address them. I make no finding on this issue as the Crown did not argue that the time taken to secure the video constituted an exceptional circumstance. But, in my view, where the Crown has advised the defence that it has taken steps to obtain video disclosure that is truly material to an accused’s election, defence-caused delay does not arise simply because the Crown faces challenges in obtaining it.

ii) Change of venue motion – Failure to accept first date offered

[36] As noted above, at the first Superior Court pretrial conference on January 19, 2023, Mr. Hillier advised the Court of his intention to bring a change of venue motion. The parties estimated that the motion required two days. The Court offered time between February 21-23, 2023, and February 27-28, 2023. Counsel for Mr. Hillier declined to accept those dates because they would not permit him the time required to prepare a proper motion record. The Criminal Proceedings Rules for the Superior Court required Mr. Hillier to provide his materials to the Crown within 30 days of the hearing. Accepting the February dates would have obligated Mr. Hillier to prepare and file his materials within days of the pretrial conference.

[37] After Mr. Hillier declined the February dates, the Court offered a single day on March 3, 2023. Mr. Hillier declined that date as well for the same reasons. In any event, the time estimate for the motion was two days and the Court only offered one day in March. The first two-day period offered by the Court after February commenced on April 27, 2023. Mr. Hillier accepted these dates as did the Crown.

[38] The Crown argues that the delay between the first motion date offered in February and April 27, 2023, is defence-caused delay because the court and the Crown were ready to proceed, but the defence was not: see Cody, at para. 30. The Crown contends that Mr. Hillier should have had his motion materials ready in advance of the pretrial such that he could accept an early date. The Crown maintains that this is a reasonable expectation because Mr. Hillier elected to be tried in the Superior Court in early December 2022; therefore, he had sufficient time before the pretrial conference to contemplate his change of venue motion.

[39] I cannot accept this argument. There is no expectation on either party to have anticipated pretrial motion materials completed by the first pretrial conference in the Superior Court. The first pretrial conference is a venue where anticipated motions are discussed. There is also a hope that certain concessions will be made at a pretrial conference that may obviate the need for certain pretrial motions. For example, in its pretrial conference report, the Crown advised that it intended to bring a voluntariness application respecting Mr. Hillier’s statement to the police. I highly doubt that the Crown had its application materials prepared by the January 19 pretrial. Indeed, the Crown did not file its pretrial conference report until the day before the conference.

[40] As noted, the Rules would have required Mr. Hillier to produce his motion record and related materials within days of the first pretrial had he accepted the February dates. The materials required for a change of venue motion are often extensive. Indeed, ultimately, Mr. Hillier produced a 939-page motion record and an 18-page factum in support of his motion.

[41] Expecting counsel to prepare and file these materials in such a short timeframe is not reasonable. Even had the Crown been willing to waive some portion of the 30-day notice, Mr. Hillier would still have had to prepare his materials within two to three weeks because the Crown would have needed a reasonable amount of time to prepare a response. In my view, Mr. Hillier accepted the first reasonable date that trial coordination offered to argue his two-day motion, and the Jordan presumptive ceilings contemplate the time reasonably required by the defence to prepare and present its case: Cody, at para. 20.

[42] In conclusion, I find there was no defence-caused delay in the setting of the original motion date. The question that remains on the issue of defence-caused delay is what steps or actions could reasonably have been expected of Mr. Hillier pending the outcome of his motion. I address those issues next.

iii) Change of venue motion – Refusal to set provisional trial dates

[43] After the initial pretrial conference in the Superior Court, through the spring, summer and early fall of 2023, the Crown repeatedly asked counsel for Mr. Hillier to schedule a second pretrial so that the parties could discuss a trial estimate and secure provisional trial dates in Ottawa. The Crown argues that setting provisional dates was a prudent request because trial time would then have been in place for Mr. Hillier were his request for exceptional relief denied. Counsel for Mr. Hillier declined to schedule a judicial pretrial or set provisional dates.

[44] The Crown contends that because counsel refused to set provisional trial dates, I should characterize the delay associated with the change of venue motion as defence-caused delay. In effect, the Crown maintains that unless an accused and their lawyer are prepared to set provisional trial dates pending the outcome of a change of venue motion, the delay associated with even a legitimate motion becomes defence-caused delay in a section 11(b) analysis. For reasons given below, I do not accept this argument.

[45] Though frivolous defence applications undoubtedly give rise to defence-caused delay, I cannot find that Mr. Hillier’s change of venue motion was meritless: see Jordan, at para. 63. The decision to summarily dismiss Mr. Hillier’s motion was set aside, and the motion judge who ultimately heard Mr. Hillier’s motion implicitly found that it had some degree of merit. With that said, the manner in which Mr. Hillier proceeded with his motion can still amount to illegitimate conduct, giving rise to defence-caused delay. Indeed, that is the thrust of the Crown’s argument.

[46] I am not persuaded, however, that Mr. Hillier’s refusal to set provisional trial dates constituted a marked indifference or marked inefficiency towards delay. First, there is no evidence before me that the Superior Court was even prepared to set provisional trial dates. This practice is not commonplace, and for good reason. The Court is responsible for ensuring timely access to justice for all litigants. This is no easy task and requires the Court to ensure that trial time is used efficiently. Offering multi-week trial dates on a provisional basis could easily result in trial time not being effectively re-purposed should matters not proceed.

[47] To be clear, I certainly do not fault the Crown for canvassing provisional trial dates with Mr. Hillier. The Crown was appropriately thinking outside the box and being proactive about delay. It should not be criticized for doing so. Another accused in a future case may very well wish to avail themselves of provisional dates in these circumstances should the Court agree to offer them. I simply make the point that the Court’s endorsement of such a practice should not be presumed, and I see nothing in the record before me that the Crown raised the idea of provisional trial dates with the Court during the spring, summer, and fall of 2023.

[48] Second, requiring an accused person to accept provisional trial dates to avoid delay flowing from otherwise legitimate action being attributed to them is potentially unfair both to the accused and their counsel. For example, in the present matter, Mr. Hillier’s counsel was asked to provisionally reserve a four-week block of time in his schedule along with an adequate amount of preparation time without knowing whether his services would be required on those dates. In my view, doing so would have unfairly exposed him financially, and by extension, Mr. Hillier, who may have had to bear a portion of any financial loss that materialized.

[49] In response to that concern, the Crown argues that counsel for Mr. Hillier could easily have re-purposed the lost time should Mr. Hillier have been successful with his motion. In my view, this position is speculative at best. For example, if trial time had been reserved in March 2023, as requested by the Crown, the trial could easily have been scheduled by April 2024. Yet, Mr. Hillier’s change of venue motion was not ultimately disposed of until the end of September 2023, approximately six months before that hypothetical April trial date. In those circumstances, it is entirely foreseeable that counsel for Mr. Hillier would not have been able to backfill that time with other matters. The delay to trial in the Ontario Court of Justice in Ottawa often well exceeds ten months. Therefore, the Ontario Court of Justice would likely not have offered counsel for Mr. Hillier trial time for his other clients during that period. Further, counsel for Mr. Hillier may not have had other clients proceeding in the Superior Court seeking a trial, nor would there be any guarantee that the court time rendered available would be offered to his clients versus other accused persons in the system.

[50] In some circumstances, an accused and their counsel may wish to avail themselves of provisional trial dates if the Court is prepared to endorse it. But I am not prepared to require it of accused persons for s. 11(b) purposes. With that said, as I address in more detail below, though not resulting in defence-caused delay, Mr. Hillier’s change of venue motion having to be re-argued may still constitute an exceptional circumstance: see Gandhi, 2016 ONSC 5612, [2016] O.J. No. 4638, at para. 23.

[51] In summary, I decline to characterize the delay associated with the change of venue motion as defence-caused delay because Mr. Hillier refused to set provisional dates. There was nothing illegitimate about Mr. Hillier launching a change of venue motion, and he accepted the first reasonable date offered to have it heard. The original motion judge summarily dismissed Mr. Hillier’s motion and then set his decision aside shortly thereafter once the Supreme Court released a ruling that the motion judge felt called into question the correctness of his decision. Mr. Hillier then accepted all dates that were subsequently offered by trial coordination to have his motion re-heard. Mr. Hillier’s conduct regarding the scheduling of his motion is unimpeachable, except for whether his counsel should have attended a second pretrial conference pending the outcome. I turn to that issue now.

iv) Change of venue motion – Attending a pretrial conference pending outcome

[52] As noted above, while Mr. Hillier’s change of venue motion was pending, the Crown repeatedly asked counsel for Mr. Hillier, who is not Mr. Hillier’s counsel on this application, to attend a second judicial pretrial conference for the purpose of discussing pretrial motions and trial estimates. Counsel for Mr. Hillier declined. In my view, his refusal constituted a “marked indifference” towards delay and ran counter to his obligation to work collaboratively with the Crown and the Court to address his client’s s. 11(b) interests.

[53] Because counsel for Mr. Hillier refused to act proactively, on September 25, 2023, after the motion judge dismissed Mr. Hillier’s motion, the parties could not immediately set trial dates since they had not yet secured judicial approval for trial and pretrial motion dates. Instead, the parties had to schedule a pretrial conference on November 30, 2023, over two months later, for that purpose. In my view, the 65-day delay between September 25, 2023, and November 30, 2023, lies at the feet of the defence. It was the direct result of counsel’s unjustified refusal to participate in a pretrial conference despite being asked to do so repeatedly by the Crown.

[54] Further, the record before me discloses that counsel for Mr. Hillier initially understood the value of acting proactively while the change of venue motion was pending. On January 26, 2023, counsel advised the Crown via email that he was “doing a bit of preliminary prep so that once the venue issue is resolved, we are ready to move forward”. He posed numerous questions to the Crown, including asking it for a tentative batting order of witnesses so he could turn his mind to a trial estimate. Evidently, at that time, counsel felt that those proactive discussions could take place while the motion was pending. As I set out below, counsel’s mentality inexplicably and unjustifiably changed some months later.

[55] The Crown first suggested a second pretrial conference for the purpose of discussing trial estimates via an email sent to counsel on February 13, 2023. Counsel for Mr. Hillier did not respond.

[56] On May 3, 2023, the Crown again wrote to counsel stating the following:

…I am concerned about the passage of time and your client’s right to a timely trial. A JPT to discuss and set trial time will assist whether Mr. Hillier’s trial takes place in Ottawa or another jurisdiction.

In the event that your change of venue application is ultimately granted and the trial is moved to another jurisdiction, we can use our trial estimate to set dates in the new jurisdiction.

[57] Counsel for Mr. Hillier again did not respond.

[58] On June 13, 2023, the Crown asked counsel for a third time to attend a pretrial conference pending the outcome of the motion, again citing concerns about delay and efficiency. Counsel for Mr. Hillier responded that, while he too was concerned about delay, “potentially duplicating JPTs is not in the interests of the justice system either.” He further wrote that, “scheduling a JPT without knowing which jurisdiction the matter is proceeding in is putting the cart before the horse.”

[59] I disagree that conducting a pretrial was “putting the cart before the horse.” A pretrial discussion regarding trial estimates, admissions, anticipated pretrial motions, challenges for cause, etc., would have had significant value regardless of the ultimate venue in which the trial proceeded. The parties could easily have reached an agreement on what additional time may be required were the matter to proceed in Ottawa, given the more extensive juror screening required, such that one estimate could have been agreed upon for Ottawa and a slightly different estimate were the trial to proceed elsewhere. The value of having these discussions pending the change of venue motion is self-evident. Indeed, it appears to have been obvious to counsel for Mr. Hillier in January 2023.

[60] Had counsel for Mr. Hillier attended a pretrial conference before September 25, 2023, the parties would have been able to immediately set trial and pretrial motion dates after the release of the motion judge’s decision. Had Mr. Hillier’s motion been granted, the parties could have arrived in another jurisdiction ready to set dates. I do not accept that, in those circumstances, the parties would have had to “duplicate” the pretrial conference. At worst, perhaps a brief judicial pretrial conference in the neighbouring jurisdiction would have been appropriate to inform the Court of the results of the prior pretrial and address any jurisdiction-specific issues.

[61] Finally, I have also considered the matter’s proximity to the applicable Jordan ceiling when counsel refused to participate in a judicial pretrial: see Cody, at para. 32. By the spring and summer of 2023, Mr. Hillier’s matter had been in the system for over 15 months. Trial dates had not yet been set, and the change of venue motion was not being heard until September 18, 2023. In the circumstances, counsel should have been willing to take all reasonable and collaborative steps to mitigate delay.

[62] For reasons already given, Mr. Hillier was not required to reserve provisional trial dates pending the outcome of his change of venue motion. However, I find it entirely reasonable to have expected his counsel to attend a relatively brief pretrial conference to discuss trial and pretrial motion estimates, a discussion that could easily have been re-purposed in large part in another jurisdiction if the change of venue motion were successful. This is precisely the type of proactive step envisioned by the Court in Jordan. As a result, I find that the delay between September 25, 2023, and November 30, 2023, is defence-caused delay.

[63] I make one final comment before addressing the final area where the Crown alleges defence-caused delay. I appreciate that on January 26, 2023, counsel for Mr. Hillier asked the Crown to provide an anticipated list of witnesses before a potential pretrial conference. The Crown declined to provide that information. The Crown’s refusal to provide a tentative witness list does not impact my analysis. First, it did not justify counsel refusing to attend a pretrial conference. Counsel could easily have sought assistance from the Court regarding a witness list if he felt it necessary. Second, counsel for Mr. Hillier on this application fairly conceded in oral submissions that prior counsel refused to attend a pretrial conference because of the outstanding change of venue motion, not because the Crown refused to provide him with a witness list. Therefore, there is no nexus between the witness list dispute and the delay that transpired in this case.

v) Untimely notice of section 11(b) application

[64] The parties reserved the existing trial dates shortly after a pretrial conference that took place on November 30, 2023. Mr. Hillier was self-represented when the parties secured the trial dates. He remains self-represented for trial though he did retain counsel to argue this application. On July 24, 2024, almost eight months after the set date appearance, Mr. Hillier’s counsel provided the Crown informal notice of Mr. Hillier’s intention to seek a stay of proceedings pursuant to s. 11(b) of the Charter.

[65] The Crown argues that Mr. Hillier did not provide timely notice of his application; consequently, it was deprived of the opportunity to mitigate the impugned delay. As a result, though the Crown did not forcefully advance this argument, the Crown maintains that a portion of the delay between the set date appearance and the trial dates should be attributed to the defence.

[66] Mr. Hillier contends that his s. 11(b) notice was timely when one considers that he is self-represented. He argues that whatever expectations are typically placed on counsel in these circumstances should be relaxed. Further, Mr. Hillier maintains that the Crown did not adduce evidence of what steps it would have taken had he provided earlier notice.

[67] In Jordan, the Court delivered a clear message that all participants in the criminal justice system must take proactive measures to prevent delay. The Court adopted a prospective approach by defining set ceilings, beyond which net delay is presumptively unreasonable. This approach gives all parties the ability to identify with increased predictability when delay is becoming a live issue and imposes a corollary duty on all parties to act with dispatch when raising the issue.

[68] Later, in R v J.F., 2022 SCC 17, the Supreme Court specifically addressed the accused’s obligation to raise delay in a timely manner. The issue before the Court was whether the Jordan framework permitted an accused, in the context of a retrial, to challenge delay from their first trial. The Court held that, absent exceptional circumstances, only retrial delay is counted towards the total when s. 11(b) is raised during a retrial: J.F., at para. 60.

[69] In so holding, however, the Court made general comments about an accused’s duty to act proactively with respect to delay. Once again, the Court stressed that all participants in the criminal justice system, at all stages of the trial process, must take proactive measures to remedy delay, including acting diligently and expeditiously when launching s. 11(b) applications: J.F., at paras. 3, 30, and 34.

[70] Though the Court’s comments must be viewed in light of the context in which they were made, i.e., whether delay from a first trial can be raised during a re-trial, I find that the Court’s dicta apply outside that limited context. As noted above, requiring accused persons to act promptly when raising s. 11(b) issues is not unreasonable because the Jordan framework now allows them to identify with greater predictability when their rights have been presumptively infringed: J.F., at para. 31. An accused must “be an active part of the solution to the problem of delay in criminal cases”: J.F., at para. 31.

[71] The Court found that an accused who raises delay for the first time after conviction is generally not acting in a timely manner: J.F., at para. 35. And though the Court did not specifically address what constitutes “timely action” within the context of a single trial, in my view, whether delay is raised after conviction or so close to trial that the delay cannot conceivably be remedied is a distinction without a difference in terms of how the associated delay should be allocated in the s. 11(b) analysis. Such inaction should be deterred and, where appropriate, called out as contrary to the Supreme Court’s clear direction in Jordan that all parties adopt a collaborative and proactive approach to delay.

[72] Failing to promptly launch a s. 11(b) application, though not amounting to a waiver, can deprive the parties of the opportunity to address the impugned delay, a result that runs counter to the collaborative approach espoused in Jordan. Late action on the part of an accused also undermines the purpose of s. 11(b) which is to ensure that accused persons are tried within a reasonable time, not to avoid trials on the merits: see J.F., at para. 32.

[73] Numerous trial courts have recently relied on J.F. to apportion some of the delay between the set date appearance and the trial date to defence where it fails to launch a s. 11(b) application in a timely manner. The emerging trend is for the Court to extend a 30-day grace period to the defence following the setting of trial dates, during which time the defence can contemplate a s. 11(b) application. Thereafter, if s. 11(b) is not raised promptly, the delay to trial is shared equally or near-equally between the parties.

[74] Based on my review of this developing jurisprudence, the theory underpinning this approach is that 1) the accused is generally aware by the time trial dates are set of whether their rights have been presumptively infringed and, therefore, their duty to act arises at or near the set date appearance: J.F., at para. 31; 2) the late filing of a section 11(b) motion will often deprive the parties of the ability to collaborate and satisfactorily mitigate the delay, likely through seeking earlier dates through trial coordination, if appropriate: see e.g., R v Nigro, 2023 ONCJ 41, R v Wright, 2024 ONSC 1893; R v Osei-Bekoe, 2024 ONSC 3490; and 3) where delay is raised close to the anticipated trial date, the Court may be unable to re-purpose the court time should the matter be stayed, resulting in a waste of limited court resources: R v Vallotton, 2024 ONCA 492, at para. 30; R v C.M., 2024 ONSC 4777, at para. 51.

[75] In R v Mengistu, 2024 ONCA 575, the Court of Appeal for Ontario recently held that if the Crown seeks to apportion some of the trial delay to the defence due to an untimely s. 11(b) application, the Crown must establish 1) that the defence failed to raise s. 11(b) concerns in a timely way; and 2) that the failure contributed to the delay in bringing the matter to trial within the presumptive Jordan ceilings: para. 40. In Mengistu, the Court declined to determine the second of these issues because the argument had not been raised in the court below, resulting in an insufficient appeal record.

[76] Other than the two-part test set out above, there is currently no appellate guidance on what type of evidence may be required of the Crown to establish the impact of late s. 11(b) applications, what factors may be relevant to the analysis, or how to quantify defence delay where a court is satisfied that untimely action on the part of the defence contributed to the delay.

Did the defence fail to raise delay in a timely manner?

[77] Defence-caused delay arises where the defence waives a period of delay, or where illegitimate defence conduct is the sole cause of delay. Defence waiver is not the basis upon which delay flowing from late s. 11(b) applications may be apportioned to defence. In J.F., the Court firmly rejected the argument that, on its own, defence inaction can constitute a clear and unequivocal waiver: para. 52. Rather, delay flowing from the timing of a s. 11(b) application can only be attributed to the defence where its conduct in raising the application amounts to illegitimate defence conduct. To that end, in my view, a Court assesses the timeliness of a s. 11(b) application in much the same manner as it determines whether any other defence action or inaction amounts to illegitimate defence conduct, with reference to the guidance set out in Cody.

[78] In this specific context, in my view, the Court should consider all the circumstances, including but not limited to the procedural history, what was known or ought to have been known to the parties in terms of whether delay was a live issue in the case, the circumstances of the accused, in particular, whether they were self-represented, and whether earlier opportunities arose for the defence to raise the issue, even informally, for example before a case management judge.

[79] I find that Mr. Hillier did not raise his s. 11(b) application in a timely way. First, as early as February 2024, despite being self-represented, Mr. Hillier was evidently aware of his s. 11(b) rights. The parties attended a pretrial conference on February 12, 2024, approximately two months after the set date appearance. At that time, dates had already been reserved in September 2024 for the Crown’s pretrial motions. The purpose of the February 12 pretrial was to discuss what, if any, pretrial motions Mr. Hillier wished to raise.

[80] At the pretrial, Mr. Hillier was engaged, articulate and informed. He told the pretrial judge that he intended to remain self-represented as he found it liberating. Mr. Hillier asked the pretrial judge numerous questions. The parties discussed the nature of the admissions they sought, the expert evidence that Mr. Hillier wished to call, the potential appointment of an amicus curiae, and Mr. Hillier’s anticipated disclosure motion. The pretrial transcript discloses that Mr. Hillier was proactive in researching applicable areas of the law before the pretrial commenced. For example, he asked the case management judge to approve a “McKenzie Friend” to assist him at trial.

[81] In the context of the above discussions, Mr. Hillier stated the following:

RANDALL HILLIER: ...in principle. The – well, your, your comments just cause me to have, have one further question on this now, Your Honour, and that is we're already now well past the, the Jordan timeframes for a trial in this regard, and if - I, I don't want this, you know, the Crown is proposing an amicus to be, be put forward, and I'm, I'm not opposing that. However, this has been a, a very strenuous and lengthy time, this trial, this, this process. I don't want it to – that the amicus become delayed or cause further delays in the process or that, that the defence is agreeing to, in any fashion to more delays, and there's been far too many delays.... [emphasis added]

[82] Mr. Hillier’s comments on February 12, 2024, reflect that he was not only aware of his rights under s. 11(b) of the Charter, but he knew of the leading case and the presumptive ceilings that applied to his matter. He did not provide the Crown formal notice of his s. 11(b) application until July 24, 2024, almost eight months after the set date appearance and almost six months after the pretrial conference, despite having appeared before the case management judge numerous times between November 2023 and July 2024.

[83] In my view, given that Mr. Hillier is an intelligent, articulate, and inquisitive litigant who was aware of his s. 11(b) rights, his duty to act was triggered long before his July 24 notice. I am satisfied that Mr. Hillier could easily have sought guidance from the Court as early as February 12, 2024, in terms of how to raise delay as an issue if he did not already know. Indeed, he was confident and articulate enough to advise the Court that he was concerned about delay and did not wish the appointment of amicus curiae to further delay his matter. I also find that he knew enough regarding his rights that if he wished to secure legal advice on the issue – which he ultimately did – he could have done it earlier. To be clear, I am not suggesting that Mr. Hillier acted in bad faith. Nor must I make that finding to conclude that his s. 11(b) notice was untimely.

Did the late timing of the s. 11(b) application contribute to the delay?

[84] Establishing that the defence did not act timely when raising a s. 11(b) application does not on its own give rise to defence-caused delay. The Crown must also establish that the late application contributed to the matter not being heard within a Charter-compliant timeframe: Mengistu, at para. 40.

[85] This too is assessed contextually. In my view, the extent to which the Crown ought to have known that delay was an issue, even in the absence of a timely s. 11(b) notice, is a relevant factor when assessing whether and to what extent defence contributed to the delay. For example, in Wright, the Court heavily criticized the defence for not promptly raising its section 11(b) application: “[b]y simply waiting to file an application close to or on the trial date results in the Crown being unable to mitigate delay. It also means the court cannot remedy the situation by finding earlier trial dates”: para. 29. Notwithstanding its strong comments, the Court declined to apportion the trial delay equally between the parties because, despite the late s. 11(b) notice, the Crown had always understood that delay was a live issue. The record disclosed that after the trial dates were set, the Crown took early action to remedy the delay, yet inexplicably failed to follow up on those preliminary steps. In other words, the failure of the defence to notify the Crown that delay was an issue did not deprive the Crown of the opportunity to mitigate the delay. Despite already knowing that s. 11(b) was a serious issue, the Crown simply allowed the case “to disappear from view”: Wright, at para. 34.

[86] The same could not be said in Nigro. There, trial dates were set well outside the Jordan ceiling but in circumstances where the matter had proceeded through the remand stage during the height of the pandemic, when trial courts had been shut down for over seven months. In that context, the Court found it reasonable for the Crown to presume that delay was a non-issue subject to hearing otherwise from the defence. The Court found that the late s. 11(b) application constituted illegitimate defence conduct, which directly impacted the Crown’s ability to mitigate the delay. The Court apportioned the delay between the set date appearance and the trial date equally between the parties.

[87] Assessing whether defence inaction actually contributed to the delay must, therefore, be done on a case-by-case basis. For example, if a straightforward matter proceeds through the remand phase with reasonable dispatch, yet trial dates are not offered within the applicable Jordan ceiling, that alone may be sufficient to put the Crown on notice that delay is a problem. In those circumstances, an application judge may find that a late s. 11(b) notice had little, if any, impact on the Crown’s ability to address the delay since it ought to have acted without it. Other matters have more complicated procedural histories where the Crown may reasonably presume that certain periods of past delay are attributable to the defence such that delay is not a live issue despite trial dates exceeding the applicable ceiling. This dynamic is well set out in R. v. W.S., 2024 ONSC 1668, at para. 109:

While a Crown may know that a trial date is set outside of the presumptive ceiling, a Crown does not necessarily know there is a Jordan problem especially if no intention to bring a s.11(b) application is made known. There are other factors to consider that would not cause a Crown to assume there is a problem. For example, the Crown may not know how much delay might be attributed to COVID. In this case, contextually, COVID postponed the recommencement of criminal jury trials to February of 2022. There was also a delay in making the election and deciding mode of trial. There were other periods over the proceeding that the Crown reasonably believed was being or would be acknowledged as defence delay, such as the issue with problems accessing the disclosure that defence took time to advise of, the issue of retainer of counsel that arose (defence advising that they were not retained at the time of seeking trial dates or having instructions on mode of trial), previous court appearances when defence expressed "satisfaction" with suggested return dates, and previous defence adjournment requests to get instructions or make decisions with statements specifically made by defence that "the record will reflect whose delay this is" after the Crown raised s.11(b). In the context of this case, I do not find that the Crown ought to have known there was a Jordan problem simply by defence indicating that they were concerned from time to time. [emphasis added]

[88] In the present matter, notwithstanding the late s. 11(b) application, I find that the Crown ought to have been aware that delay was a live issue. On the evidentiary record before me, for the following two reasons, the Crown could not reasonably have proceeded on the basis that the defence was implicitly acknowledging certain periods of delay as defence-caused.

[89] First, in Mr. Hillier’s pretrial conference reported filed in November 2023, which was a response to the Crown’s dated form filed in January 2023, in the section asking each party to state their position on whether there has been any defence-caused delay or exceptional circumstances, Mr. Hillier indicated that there was no defence-caused delay to date, and he agreed with the Crown that no exceptional circumstances had arisen. The pretrial conference form poses these questions to the parties so that they can turn their minds to the issue and put the other on notice of its position. In the face of Mr. Hillier’s pretrial conference report, I cannot accept that the Crown reasonably believed that Mr. Hillier had implicitly conceded that certain periods of delay were defence-caused or that his change of venue motion triggered exceptional circumstances when he explicitly advised the Court and the Crown of the contrary.

[90] Second, as set out above, Mr. Hillier advised the Crown during the pretrial on February 12, 2024, that he was concerned about delay in his matter given that the trial dates had been set well outside the presumptive ceiling. That was a perfect opportunity for the Crown to confirm with Mr. Hillier whether he took issue with the existing trial dates. The onus on the Crown to prompt that discussion was high given that Mr. Hillier was self-represented.

[91] In the circumstances, like the trial judge in Wright, I cannot find that the Crown was deprived of its ability to mitigate the delay because the defence did not put the Crown on notice of its position. At the time the trial dates were set, Mr. Hillier had explicitly advised the Crown of his position that there was no deductible delay. In that context, when the trial dates were set well outside the Jordan ceiling, the Crown had the all the information it required to decide whether to 1) action the delay and seek earlier dates if it felt necessary; or 2) maintain the existing trial dates and defend the delay if called upon to do so. The Crown chose the latter.

[92] Finally, I note that in the Crown’s pretrial conference report filed on January 18, 2023, the Crown indicated that no defence-caused delay or exceptional circumstances had arisen up to that time. The Crown argued before me that certain periods of delay in the Ontario Court of Justice were caused by the defence. I need not address how, if at all, the Crown’s pretrial conference report could have impacted its argument given that I found independently that there was no defence-caused delay in the Ontario Court of Justice.

[93] In conclusion, I cannot find on this evidentiary record that the Crown was prejudiced by Mr. Hillier’s late s. 11(b) notice. As a result, I decline to apportion any of the delay between the set date appearance and the trial date to Mr. Hillier. Further, even had I found that the Crown was deprived of the opportunity to act, the Crown did not make submissions or tender evidence on what local practices may be in place to ensure that Jordan-compliant dates would have been secured even had timely notice been given.

[94] In the end, I attribute a total of sixty-five days to the defence flowing from counsel’s failure to attend a pretrial conference pending the outcome of the change of venue motion. The total delay is thirty-four months and twenty-eight days. Therefore, the total net delay still exceeds the 30-month Jordan ceiling and is presumptively unreasonable.

Exceptional Circumstances

[95] The presence of exceptional circumstances is the only basis upon which the Crown can justify a delay exceeding the ceiling: Jordan, at para. 81. Exceptional circumstances are those that lie outside the control of the Crown in the sense that they are 1) reasonably unforeseen or reasonably unavoidable; and 2) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise: Jordan, at para. 69; Cody, at para. 45. Exceptional circumstances generally fall into two categories: discrete events and particularly complex cases. Like defence-caused delay, the occurrence of discrete events results in quantified periods of time being deducted from the total delay, but only to the extent that the Crown and the Court could not reasonably mitigate the delay: Cody, at para. 48. In other words, the Crown must demonstrate that it took reasonably available steps to avoid and address the unexpected problem once it arose.

[96] As noted earlier, the change of venue motion was initially scheduled for April 27-28, 2023. On April 26, 2023, on his own initiative, the first motion judge summarily dismissed Mr. Hillier’s motion, consistent with the Supreme Court’s direction that “trial judges should not hesitate to summarily dismiss applications and requests the moment it becomes apparent they are frivolous”: Cody, at para. 38.

[97] Two days later, the Supreme Court released its decision in Haevischer. The parties appeared before the motion judge on May 15, 2023, to address whether he needed to revisit his earlier decision. The Crown filed written materials in advance of that court appearance. Counsel for Mr. Hillier appeared on May 15, 2023, but asked for further time to address the issue since he had been on vacation and understood that the parties were appearing on that date simply to schedule a future date for submissions. On June 6, 2023, counsel for Mr. Hillier filed his written submissions. On June 7, 2023, the motion judge set aside his earlier decision and ordered that the change of venue motion proceed before a new jurist.

[98] The parties subsequently agreed that the hearing could be completed in one day versus two. The trial coordinator offered September 8, 9 or 18, 2023, as a new date for the hearing. Counsel for Mr. Hillier was available on all dates. The Crown was only available on September 18, 2023.

[99] The Crown argues that the necessity of re-arguing the change of venue motion was exceptional and unforeseen and therefore the delay between April 28, 2023, and September 18, 2023, should be deducted from the total delay. This is the only period of delay that the Crown seeks to be deducted based on exceptional circumstances. The Crown did not argue that the combined effect of a change of venue motion, given their unique capacity to stall the proceedings unlike other pretrial motions, with a defence refusal to set provisional trial dates, on its own gives rise to exceptional circumstances beyond the control of the Crown; therefore, I will not address that argument. Mr. Hillier argues that the parties had already prepared their change of venue materials and were therefore ready to proceed immediately. As a result, any delay resulting from the hearing having to be rescheduled was institutional in nature and not exceptional.

[100] In my view, the release of Haevischer was an exceptional circumstance. The release of a Supreme Court decision calling into question the correctness of an earlier ruling was an event outside the control of the Crown that could not have been foreseen. This is precisely the type of unexpected development envisioned by the Supreme Court in Jordan that can create unavoidable delay. Exceptional circumstances need not be rare or entirely uncommon. Trials “are not well-oiled machines” and unavoidable developments may often arise that cause cases to quickly go awry: Jordan, at para. 73.

[101] Even where unforeseeable events arise during a prosecution, however, the Crown must take reasonable steps to mitigate and minimize delay: Cody, at para. 59. Only delay that the Crown could not reasonably mitigate is deducted from the total.

[102] The Crown learned on June 7, 2023, that new dates were required for the motion. At that time, Mr. Hillier’s matter had been in the system for approximately fifteen months. This left the Crown only fifteen months to resolve Mr. Hillier’s motion and complete a judge and jury trial. The urgency of securing a prompt motion date should have been apparent. Indeed, the necessity of setting a new date “forthwith” was explicitly addressed by the motion judge in his June 7 ruling:

Unfortunately, as a result of all of this, the matter has now been spinning its wheels with over a month of no forward progress. This result is especially regrettable since my intention was to speed things up so Mr. Hillier and the public could get to trial sooner rather than later. The matter is set to next appear on June 9, 2023, before me. I order that it be traversed from my court into the assignment court that is sitting that day so that a new change of venue application date be set forthwith. [emphasis added]

[103] In my view, in the circumstances, the Crown did not do all it could to ensure the motion was re-heard promptly. Reasonably available steps include prompt resort to case management processes to seek the assistance from the Court, where appropriate: Jordan, at para. 70. The Crown did not advise trial coordination of the unique circumstances that had arisen such that an earlier date was required, nor did it bring the matter forward to address the urgency on the record. The Crown simply accepted the later of the three dates offered by trial coordination. The Crown is “not required to establish that the steps it took were ultimately successful – rather, just that it took reasonable steps in an attempt to avoid the delay”: Cody, at para. 59. As a result, the Crown is not required to show that earlier dates would necessarily have been made available, only that it tried to secure that result. The Crown did not make those efforts despite the circumstances clearly calling for it, in my view. As a result, though the complete record before me certainly does not disclose an attitude of complacency towards delay, I find that the Crown cannot satisfy the second prong of the test for exceptional circumstances in relation to the period between June 7, 2023, and September 25, 2023.

[104] I am, however, prepared to deduct the forty-day period between April 28, 2023, and June 7, 2023, as emanating from an exceptional circumstance. As stated above, the release of Haevischer was unforeseen. The Crown promptly turned its mind to the substantive issues that arose from the decision’s release and provided the Court with written submissions. In my view, the Crown addressed the development with appropriate dispatch.

Conclusion

[105] The total day is 1061 days. Sixty-five days is defence-caused delay and must be deducted from the total. A further forty days shall be deducted on the basis of exceptional circumstances. This brings the total net delay to thirty-one months and thirteen days.

[106] The net delay is over the 30-month Jordan ceiling. As a result, the application is granted. The charges against Mr. Hillier are stayed.

McVey J. Released: November 14, 2024